Communications Decency Act of 1996
Citation Communications Decency Act of 1996, (CDA), Pub. L. No. 104-104 (Tit. V), 110 Stat. 133 (Feb. 8, 1996), codified at 47 U.S.C. §§223, 230. Overview There are two sections of the Act which address significantly subject matter. One section attempted to control the content of the Internet by criminalizing "indecent" and "patently offensive" materials. That provision was struck down by the U.S. Supreme Court in Reno v. American Civil Liberties Union.''521 U.S. 844 (1997). The other section of the CDA provides a "safe harbor" for Internet service providers against claims for defamation arising from messages posted on or passing through their equipment. That section has been upheld in numerous cases.''See, e.g., Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998). Challenge to "Indecency" and "Patently Offensive" Provisions The CDA contains provisions that were either added in executive committee after the hearings were concluded or as amendments offered during floor debate on the legislation. An amendment offered in the Senate was the source of two statutory provisions described as the "indecent transmission" provision and the "patently offensive display" provision. These provisions were “an attempt to limit the availability of certain materials in interactive computer services."Shea v. Reno, 930 F. Supp. 916, 922 (S.D.N.Y. 1996).These provisions were characterized as "a statute of unprecedented sweep."Id. The first47 U.S.C. §223(a). prohibited the knowing transmission of obscene or indecent messages to any recipient under 18 years of age. It provides in pertinent part: The second provision''Id.'' §223(d). prohibited the knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years of age. It provides: The breadth of these prohibitions was qualified by two affirmative defenses.See id. §223(e)(5). One covers those who take "good faith, reasonable, effective, and appropriate actions" to restrict access by minors to the prohibited communications.Id. §223(e)(5)(A). The other covers those who restrict access to covered material by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number or code.Id. §223(e)(5)(B). As noted in American Civil Liberties Union v. Reno: Striking down the law as unconstitutional, the court in Shea v. Reno''930 F. Supp. 916, 923 (S.D.N.Y. 1996) said: Section 230 "Safe Harbor" Provision In February of 1996, Congress made an effort to deal with some of the challenges facing Internet service providers or website owners when they allow third parties to post content on their sites by enacting Section 230 of the Communications Decency Act. While various policy opinions were open to Congress, it chose to "promote the continued development of the Internet and other interactive computer services and other interactive media" and "to preserve the vibrant and competitive free market" for such service, largely "unfettered by Federal or State regulation. . . ."47 U.S.C. §§230(b)(1), (2). Whether wisely or not, it made the legislative judgment to effectively immunize providers of interactive computer services from civil liability in tort with respect to material disseminated by them but created by others. In recognition of the speed with which information may be disseminated and the near impossibility of regulating information content, Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written by others. While Congress could have made a different policy choice, it opted not to hold interactive computer services liable for their failure to edit, withhold or restrict access to offensive materials disseminated through their medium. Section 230©(1) of the CDA provides, in pertinent part, that: The terms ''interactive computer service and information content provider have specific statutory definitions. Early cases interpreted this provision broadly to provide blanket immunity from third party defamations for ISPs and website owners.See, e.g., Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997); Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998). As stated in Zeran v. America Online, Inc.,''129 F.3d 327, 330-31 (4th Cir. 1997).: Consistent with the congressional policy in favor of the expansive application of CDA Section 230 immunity, the definition of interactive computer service is construed broadly, while the definition of information content provider is construed narrowly.See Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003). "The majority of federal circuits have interpreted the CDA to establish broad federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service."Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006). Good Samaritan Provisions Section 230©(2) of the CDA provide: Section 230 also preempts most state laws that would punish ISPs or websites for the postings of third parties. As noted in Doe v. America Online, Inc.783 So.2d 1010, 1015 (Fla. 2001).: Limitations of Section 230 Section 230 does not preempt the application of intellectual property laws to ISPs and websites for the postings of third parties. This is particularly important in the area of trademark infringement: There is a split between the federal circuits over the scope of the intellectual property exception. In Perfect 10, Inc. v. CC Bill LLC,488 F.3d 1102, 1119 (9th Cir. 2007). the court held that the term "intellectual property" in Section 230©(2) should be construed to mean "federal intellectual property" and does not include state intellectual property claims. While in Doe v. Friendfinder Network, Inc.''540 F.Supp.2d 288, 302 (D.N.H. 2008). ''See also Atlantic Recording Corp. v. Project Playlist, Inc., 603 F.Supp.2d 690, 703 (S.D.N.Y. 2009). the court held that Section 230©(2) applies to "any law pertaining to intellectual property," not just federal law. A right of publicity claim generally is considered an intellectual property claim, to which Section 230 immunity does not apply. Application to cybersecurity Some argue that certain Internet content, such as terrorist chat rooms or propaganda websites, presents a national security or operational threat that is not represented within the Act. Further, should such material be deemed as “indecent,” the law does not give federal agencies the authority to require that the Internet service providers hosting the content to take it offline. These critics maintain that the law should be revised to compel ISPs and web administrators to dismantle sites containing information that could be used to incite harm against the United States. A possible revision could be similar to the notice and takedown procedure in the Digital Millennium Copyright Act. Others maintain that such a revision is counter to the spirit of free, open exchange of information that is characterized by the Internet and may be a First Amendment violation. Some have also expressed concerns that the intelligence value gained by preserving and monitoring the sites outweighs the potential threat risk. References Source * Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions, at 27 ("Application to cybersecurity" section). See also * Liability for Content Hosts: An Overview of the Communication Decency Act's Section 230 Category:Legislation Category:Legislation-U.S.-Federal Category:Legislation-U.S.-Defamation Category:Defamation Category:Internet Category:1996